Finding of Failure To Attain and Reclassification of Denver Area for the 2008 Ozone National Ambient Air Quality Standard, 70897-70902 [2019-27485]

Download as PDF Federal Register / Vol. 84, No. 247 / Thursday, December 26, 2019 / Rules and Regulations substantial direct costs on tribal governments or preempt tribal law. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 24, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2). Dated: December 10, 2019. Mary S. Walker, Regional Administrator, Region 4. List of Subjects in 40 CFR Part 52 ■ Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds. 70897 40 CFR part 52 is amended as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart RR—Tennessee 2. Section 52.2220(e) is amended by adding an entry for ‘‘110(a)(1) and (2) Infrastructure Requirements for the 2015 8-hour Ozone NAAQS’’ at the end of the table to read as follows: § 52.2220 * Identification of plan. * * (e) * * * * * EPA-APPROVED TENNESSEE NON-REGULATORY PROVISIONS Name of non-regulatory SIP provision Applicable geographic or nonattainment area 110(a)(1) and (2) Infrastructure Requirements for the 2015 8-hour Ozone NAAQS. Tennessee ............ [FR Doc. 2019–27542 Filed 12–23–19; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA–R08–OAR–2019–0354; FRL–10003– 43–Region 8] Finding of Failure To Attain and Reclassification of Denver Area for the 2008 Ozone National Ambient Air Quality Standard Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is determining that the Denver-Boulder-Greeley-Ft. CollinsLoveland, Colorado nonattainment area (Denver Area) failed to attain the 2008 ozone National Ambient Air Quality Standard (NAAQS) by the applicable attainment date for ‘‘Moderate’’ nonattainment areas. The effect of failing to attain by the attainment date is that the area will be reclassified by operation of law to ‘‘Serious’’ upon the effective date of this final reclassification action. Along with the reclassification, the EPA is finalizing khammond on DSKJM1Z7X2PROD with RULES SUMMARY: VerDate Sep<11>2014 15:55 Dec 23, 2019 Jkt 250001 State effective date 9/13/2018 EPA approval date Explanation 12/26/2019 [Insert citation of publication]. With the exception of the PSD permitting requirements of 110(a)(2)(C) and (J), and 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2 and 3). deadlines for submittal of SIP revisions required under the new classification and implementation of related control requirements. This final action is necessary to fulfill the EPA’s statutory obligation to determine whether the Denver Area attained the NAAQS by the attainment date, and, within six months of the attainment date, to publish a document in the Federal Register identifying each area that is determined as having failed to attain and its reclassification. DATES: This rule is effective on January 27, 2020. ADDRESSES: The EPA has established a docket for this action under docket ID no. EPA–R08–OAR–2019–0354. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https:// www.regulations.gov; you may contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information. PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD–IO, 1595 Wynkoop Street, Denver, Colorado 80202–1129, (303) 312–6563, fulton.abby@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ means the EPA. I. Background The background for this action is discussed in detail in our August 15, 2019 proposal, in which we proposed to determine that the Denver Area failed to attain the 2008 ozone NAAQS by the applicable attainment date.1 The proposed determination was based upon complete, quality-assured, and certified ozone monitoring data that showed that, at 0.079 parts per million (ppm), the 8hour ozone design value for the area exceeded 0.075 ppm for the period 2015–2017.2 The EPA proposed that the 1 Proposed Rule and Notice of Public Hearing, Finding of Failure to Attain and Reclassification of Denver Area for the 2008 Ozone National Ambient Air Quality Standard, 84 FR 41674 (Aug. 15, 2019). 2 See id.; Proposed Rule, Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and Reclassification of Several Areas Classified as Moderate for the 2008 Ozone National Ambient Air Quality Standards, 83 FR 56781, 56784 (Nov. 14, 2018), Docket ID no. EPA– E:\FR\FM\26DER1.SGM Continued 26DER1 70898 Federal Register / Vol. 84, No. 247 / Thursday, December 26, 2019 / Rules and Regulations Denver Area would be reclassified as a Serious nonattainment area by operation of law on the effective date of a final action finding that the area failed to attain the 2008 ozone NAAQS by the applicable attainment date for Moderate areas.3 For the Denver Area, we also proposed deadlines for submittal of SIP revisions and implementation of the related control requirements for the Serious nonattainment area consistent with due dates and implementation deadlines for Moderate areas across the country that failed to attain by the July 20, 2018 attainment date.4 II. Final Action khammond on DSKJM1Z7X2PROD with RULES The EPA held a public hearing on the proposal at the Denver regional offices on September 6, 2019 and accepted written public comments through September 16, 2019. All comments received during the public comment period, as well as pertinent comments submitted in response to the EPA’s November 2018 proposal to grant the State of Colorado’s request for a 1-year attainment date extension for the Denver Area (which was part of a national rulemaking concerning Moderate areas) may be found in the electronic docket for this final action. Key comments and the agency’s responses are included in this section, below. A Response to Comments document including all significant comments received on the EPA’s proposal and the agency’s responses to those comments is in the docket for this rulemaking. To access the full set of comments received and the Response to Comments, please go to http:// www.regulations.gov and search for Docket No. EPA–R08–OAR–2019–0354, or contact the person listed in the FOR FURTHER INFORMATION CONTACT section. HQ–OAR–2018–0226; and Air Quality System (AQS, https://www.epa.gov/aqs) data, monitor ID 08–059–0011. A design value is a statistic that describes the air quality status of a given location (i.e., air quality monitor) with respect to the NAAQS and is used to determine compliance with the standard. The design value is the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentrations. The design value is calculated for each air quality monitor in an area, and the area’s design value is the highest design value among the individual monitoring sites in the area. See 40 CFR part 50, appendix D—Reference Measurement Principle and Calibration Procedure for the Measurement of Ozone in the Atmosphere (Chemiluminescence Method). 3 See CAA section 181(b)(2)(A), 42 U.S.C. 7511(b)(2)(A). 4 See Final Rule, Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and Reclassification of Several Areas Classified as Moderate for the 2008 Ozone National Ambient Air Quality Standards, 84 FR 44238 (Aug. 23, 2019). VerDate Sep<11>2014 15:55 Dec 23, 2019 Jkt 250001 A. Determination of Failure To Attain and Reclassification In accordance with CAA section 181(b)(2), the EPA is finalizing its proposed determination that the Denver Area failed to attain the 2008 ozone NAAQS by the applicable attainment date of July 20, 2018.5 Therefore, on the effective date of this final action, the area will be reclassified by operation of law from Moderate to Serious for the 2008 ozone NAAQS.6 Once reclassified to Serious, the Denver Area will be required to attain the standard ‘‘as expeditiously as practicable’’ but no later than nine years after the initial designation as nonattainment, which in this case would be no later than July 20, 2021. If the area attains the 2008 ozone NAAQS before the Serious area attainment date, Colorado may request redesignation to attainment, provided the State can demonstrate that it has met the criteria under CAA section 107(d)(3)(E).7 B. Summary of Major Comments and Responses The EPA received about 460 comments on its proposal to determine that the Denver Area failed to attain by the applicable attainment date and to reclassify the area to Serious nonattainment. We also received and are considering in this action 14 pertinent comments on our previous proposal to grant the State’s sincewithdrawn request for an attainment date extension.8 All comments received are posted in the docket for this action, and responses to all significant comments are in the Response to Comments document in the docket. Below is a summary of the major adverse comments and our responses to them. Comments concerning the withdrawn extension request: Several commenters requested that the EPA reinstate the one-year attainment date extension to give the Denver Area time to attain the NAAQS. Some expressed concern that withdrawal of the one-year extension of the attainment date would not improve air quality as expeditiously as possible. One commenter pointed to a lawsuit at the Colorado Court of Appeals 9 and stated that the Court could possibly 5 See 42 U.S.C. 7511(b)(2); 84 FR 41674. revised classification will appear in the Federal Register at 40 CFR 81.306. 7 42 U.S.C. 7407(d)(3)(E). Redesignation guidance and more information about the Clean Data Policy are available at https://www.epa.gov/ozonepollution/redesignation-and-clean-data-policy-cdp. 8 83 FR 56781; these comments are available at docket ID no. EPA–R08–OAR–2019–0354–0011. 9 See Defend Colorado comment letter, docket ID no. EPA–R08–OAR–2019–0354–0334. 6 The PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 invalidate the withdrawal of the attainment date extension request. Response: By letter dated June 4, 2018,10 the Colorado Department of Public Health and Environment (CDPHE) requested an extension of the Denver Area Moderate attainment date and certified that the State of Colorado complied with all the requirements and commitments pertaining to the Denver Area Moderate ozone area SIP, in accordance with CAA section 181(a)(5)(A). On November 14, 2018, the EPA proposed in our national Determination of Attainment by the Attainment date (DAAD) action to grant a 1-year extension of the attainment date for the Denver Area.11 In a letter dated March 26, 2019, Colorado Governor Jared Polis informed the EPA that the State was withdrawing its June 4, 2018, request for a one-year attainment date extension for the 2008 ozone NAAQS.12 We therefore stated in our final national DAAD action that we were not taking final action on the extension but would be addressing whether the Denver area attained the 2008 NAAQS by the July 20, 2018 attainment date and any associated reclassification in a separate action.13 We proceeded in this fashion because the EPA interprets CAA section 181(a)(5) to require a request from a state before the EPA may consider granting a one-year attainment date extension.14 Accordingly, because the Governor has withdrawn the State’s request, the EPA is not taking final action to grant a one-year extension for the Denver Area, and instead is determining that the Denver Area failed to attain by the attainment date. Comments opposing reclassification: Several commenters disagreed with the EPA’s proposal to reclassify the Denver Area from a Moderate to a Serious nonattainment area. The commenters cited various reasons for their opposition. One asserted that but for international emissions, Colorado would comply with the applicable ozone NAAQS, while another asserted 10 Letter from Garrison Kaufman, Director, Air Pollution Control Division, CDPHE to Doug Benevento, ‘‘Submittal of Exceptional Events Demonstration and Request to Extend 2008 Ozone National Ambient Air Quality Standard Attainment Deadline for the Denver Metropolitan/North Front Range Nonattainment Area’’ (June 4, 2018), docket ID no. EPA–R08–OAR–2019–0354–0002. 11 84 FR at 56784. 12 Letter from Governor Jared Polis to Doug Benevento, Regional Administrator, EPA Region 8, ‘‘Withdrawal of Colorado’s Request to Extend the 2008 Ozone National Ambient Air Quality Standard Attainment Date for the Denver Metropolitan/North Front Range Nonattainment Areas’’ (March 26, 2019), docket ID no. EPA–R08–OAR–2019–0354– 0012. 13 84 FR at 44242. 14 See id. E:\FR\FM\26DER1.SGM 26DER1 Federal Register / Vol. 84, No. 247 / Thursday, December 26, 2019 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES that the State’s decision not to pursue a CAA section 179B international emissions demonstration was ‘‘misguided.’’ Another commenter alleged that the Denver Area cannot attain the standard by July 20, 2021, and that reclassification would force businesses to adopt new control strategies ‘‘with no scientific evidence that such strategies will achieve any reduction in ozone.’’ One comment focused on data, claiming that the CDPHE annual air quality data is ‘‘incomplete and materially flawed’’ because it does not account for international emissions and exceptional events, and that the ‘‘based on’’ language of section 181(b)(2) gives the EPA the discretion to consider factors other than the air quality data submitted by the state. The commenter asked the EPA to reopen the public comment period so that it can ‘‘more fully evaluate the impact of international emissions and exceptional events on ozone concentrations in Colorado.’’ Also, the commenter urged the EPA to propose a new rule finding that the Denver Area attained the 2008 ozone NAAQS. Response: Detailed responses to the above comments are in the Response to Comments document in the docket for this action. A summary of those responses follows. The EPA has a mandatory duty under CAA section 181(b)(2) to determine whether the Denver area attained by its July 20, 2018 attainment date based on the area’s design value as of the attainment date. The area’s 2015–2017 design value of 0.079 parts per million is based on certified, quality-assured air quality monitoring data. None of the air quality considerations raised by commenters permits the EPA to make a different determination of attainment for the Denver area. With respect to the influence of international emissions on a nonattainment area, CAA section 179B(b) 15 specifies that ‘‘any state’’ that establishes to the satisfaction of the Administrator that an ozone nonattainment area in such state would have attained the ozone NAAQS ‘‘but for emissions emanating from outside the United States’’ is not subject to CAA requirements for reclassification upon failure to attain.16 The clear statutory 15 42 U.S.C. 7509a(b). Section 179B(a) is not relevant to this action, because it concerns the approvability of attainment demonstrations, and does not apply to reclassifications. Accordingly, our discussion focuses on section 179B(b). 16 The text of that section contains an erroneous reference to section 18l(a)(2) instead of 181(b)(2); our response to the comment would be the same regardless of the cross-referenced section. See VerDate Sep<11>2014 15:55 Dec 23, 2019 Jkt 250001 text of CAA section 179B(b) limits the option to make the section 179B(b) demonstration to the state with jurisdiction over the relevant ozone nonattainment area. There is no statute or rule requiring the state to submit a 179B(b) demonstration. As noted by some of the commenters, the CAA is based on a cooperative federalism structure, and in that structure, Congress reserved for each state the discretion, based on its expertise and judgment, whether to seek relief under CAA section 179B(b). The EPA has no authority to require the state to make a different decision, nor may any party make such a demonstration on behalf of the state. The EPA has not received a section 179B(b) demonstration from Colorado. As to exceptional events, an acceptable demonstration must meet requirements of the Exceptional Events Rule, promulgated at 40 CFR 50.14. Under this rule, demonstrating that an event meets these requirements begins with a state identifying monitoring data that were affected by an exceptional event and resulted in exceedances or violations of any NAAQS for purposes of a regulatory determination. Once a state identifies such data, it may choose to notify the Regional EPA office of its intent to submit an exceptional event demonstration.17 If the state chooses to submit a demonstration, it flags the associated data and creates an initial event description in the EPA’s Air Quality System. The state and the EPA communicate about any potential issues or deadlines that may be pertinent to the submission, and once the demonstration is finalized, the state must provide notice and opportunity for public comment. After these steps have been completed, the state submits the demonstration to the Regional EPA office for analyses and potential concurrence. As some commenters note, the EPA previously reviewed two exceptional event demonstrations submitted as a part of Colorado’s now-withdrawn request for an attainment date extension.18 These demonstrations were considered in calculating the design value for the Denver Area that this action is based on. That is, the 0.079 ppm design value for the Denver Area excludes the two days covered by the previously submitted exceptional event demonstrations. While the exclusion of General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 FR 13498, 13569 (Apr. 16, 1992). 17 40 CFR 50.14(a). 18 See Letter from Garrison Kaufman (June 4, 2018), docket ID no. EPA–R08–OAR–2019–0354– 0002. PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 70899 those two days of data qualified the Denver Area for the 1-year extension of the attainment date, the area’s design value as of the attainment date exceeds the NAAQS whether or not the exceptional events days are excluded. The EPA will review any exceptional event demonstrations that may be provided by Colorado in the future, as potentially relevant to future actions, but we have received no other demonstrations that relate to this action. As noted above, CAA section 181(b)(2)(A) requires the EPA Administrator to determine whether an area attained the 2008 ozone 8-hour NAAQS based on the area’s design value as of the July 20, 2018 attainment date, which in this case was 0.079 ppm, based on data from calendar years 2015– 2017. Finally, the EPA disagrees with the assertion that section 181(b)(2) affords the agency the discretion to consider other factors besides an area’s air quality design value in determining whether an area attained by its attainment date. But even if the commenters’ interpretations were correct, for the reasons explained above and in the Response to Comments, it would be reasonable in this case not to exercise that discretion, and to consider only the design value. Comment: Several commenters urged the EPA not to finalize reclassification of the Denver Area to Serious because it will result in ‘‘immediate and longterm damage’’ to the State’s economy and have ‘‘immeasurable economic impacts on the business community’’ and elsewhere. Several commenters claimed that reclassification would result in the loss of federal highway funds. Response: The CAA does not allow the EPA to consider economic impacts in assessing whether an area has attained the NAAQS by the applicable date. Instead, CAA section 181(b)(2) requires the EPA to make the determination of attainment based solely on the design value, which is derived entirely from monitored air quality data. Here, we find that the Denver Area did not attain the 2008 Ozone NAAQS by the Moderate attainment date, based on the area’s 2015–2017 design value of 0.079 ppm— which unequivocally exceeds the standard of 0.075 ppm.19 As required by CAA section 181(b)(2)(A), the determination that the Denver Area failed to attain by the attainment date results in a reclassification to Serious by operation of law. As to loss of highway funds, the mere reclassification of an area does not 19 See E:\FR\FM\26DER1.SGM 83 FR 56784. 26DER1 70900 Federal Register / Vol. 84, No. 247 / Thursday, December 26, 2019 / Rules and Regulations automatically trigger highway sanctions or increased offset requirements under section 179(b)(1). Sanctions would only be a possibility if the EPA finds that the State has failed to submit a plan under section 110, disapproves a submission, or finds that any requirement of an approved plan is not being properly implemented, and would only be required if the State fails to remedy the deficiency within 18 months. Comment: Several commenters were concerned about the need for businesses to obtain major source permits because the major source threshold drops with a Serious classification, and about the potential of an increased backlog at CDPHE for issuing permits. Response: We acknowledge commenters’ concerns regarding resource needs for permitting new major sources under a Serious reclassification. However, as previously discussed, CAA section 181(b)(2) sets forth the requirements for the EPA to make an attainment determination and subsequent reclassification due to failure to attain, and does not afford the agency any discretion to refrain from reclassification because of commenters’ concerns about permitting. The EPA recognizes the challenges posed by a Serious classification, though, and is committed to working closely with Colorado to help them with planning requirements associated with this classification. khammond on DSKJM1Z7X2PROD with RULES C. Comments Concerning Serious Area SIP Revision Submission Deadlines and Reasonably Available Control Technology (RACT) Implementation Deadlines The EPA received comments on the proposed Serious area deadlines for submitting SIP and RACT revisions, and on the deadlines for implementation of RACT. After full consideration of those comments, and pursuant to CAA section 182(i), the EPA is finalizing the following SIP submission due dates and RACT implementation deadlines for Colorado. The due date for Serious area SIP revisions, including RACT measures tied to attainment for the Denver Area, will be August 3, 2020. That is also the implementation deadline for RACT measures tied to attainment. For SIP revisions for RACT measures not tied to attainment, the EPA is finalizing a due date of March 23, 2021 and an implementation deadline of July 20, 2021. All of these deadlines are consistent with deadlines finalized in the August 2019 national rulemaking that reclassified several other areas classified as Moderate to Serious for the VerDate Sep<11>2014 15:55 Dec 23, 2019 Jkt 250001 2008 ozone NAAQS.20 August 3, 2020, is also the deadline for areas classified Moderate and higher for the 2015 ozone NAAQS to submit RACT SIP revisions.21 Comments on August 3, 2020 deadlines: Some commenters opposed the deadline for SIP submissions and implementation of RACT measures tied to attainment because they asserted that deadline would not provide a reasonable amount of time to evaluate control options, conduct rulemaking, and give affected sources sufficient time to implement control requirements. Several commenters said that it would not be achievable for Colorado to develop and submit a SIP by the August 3, 2020 deadline, especially because of Colorado’s legislative process. These commenters preferred a period of 18 months or more, or at least the same amount of time as other reclassified areas, for Serious Area SIP submission due dates and implementation deadline for RACT measures tied to attainment. Several comments suggested that an extended deadline for SIP submittal could result in more significant emission reduction measures than a shortened deadline. On the other hand, other comments supported the August 2, 2020 deadline based on the need to ‘‘rapidly address the pollution problem,’’ and one commenter claimed that the EPA’s ‘‘history of repeated delay in implementing the 2008 NAAQS further justifies EPA’s proposal to adopt the same SIP submission due dates and implementation deadlines that were finalized in EPA’s August 2019 national rulemaking.’’ Response: CAA section 182(i) gives the Administrator the authority to adjust SIP submission due dates as necessary or appropriate to assure consistency among SIP submissions.22 In interpreting ‘‘consistency among the required submissions,’’ the EPA is not only considering submissions for multiple ozone NAAQS that are currently being implemented, but also consistency among the various similarly situated nonattainment areas that are being reclassified. As stated in section II of the proposal’s preamble, ‘‘given the State’s commitment to addressing its 20 See 84 FR 44238. Final Rule, Implementation of the 2015 National Ambient Air Quality Standards for Ozone: Nonattainment Area State Implementation Plan Requirements, 83 FR 62998, 63007 (Dec. 6, 2018) (setting RACT submission deadlines at ‘‘no later than 24 months after the effective date of nonattainment designation’’); Final Rule, Additional Air Quality Designations for the 2015 Ozone National Ambient Air Quality Standards, 83 FR 25776 (June 4, 2018) (designating areas effective August 3, 2018). 22 42 U.S.C. 7511a(i). Serious Area obligations, and given section 182(i)’s focus on consistency, we [find] that aligning Colorado’s deadline with the national deadlines is appropriate and necessary for achieving ‘consistency among the submissions’ of all reclassified areas across the country and supports achieving timely attainment in the Denver Area.’’ 23 With regard to the requests for a period of 18 months or longer for submitting SIP revisions, the governor’s letter withdrawing the extension request committed to ‘‘moving aggressively forward and without delay in our efforts to reduce ground level ozone concentrations in the Denver Metro/ North Front Range nonattainment area.’’ We will work with Colorado’s air planning agencies as they develop additional attainment plans. Furthermore, Colorado has known that revised implementation plans would be due soon after reclassification, in order to provide for expeditious attainment of the 2008 ozone NAAQS, and has had the opportunity to make progress on plan development activities before issuance of this final action. Colorado was aware of proposed Serious SIP due dates since the November 14, 2018 proposed DAAD, which is evident from the comment letter submitted by CDPHE in connection with that proceeding.24 And previously, when the Denver Area was reclassified from Marginal to Moderate nonattainment,25 the State only had seven months from the effective date of reclassification to submit Moderate and RACT SIPs. The Colorado Air Quality Control Commission has adopted new and revised rules in 2019 to prepare for the development and submission of a Serious SIP. Some of these include adoption of Regulation Number 21 to establish VOC content limits for consumer products and architectural and industrial maintenance coatings manufactured and/or sold in Colorado, revisions to Regulation Number 7 to minimize emissions from the oil and gas sector, and adoption of certain RACT for major sources with VOC and/or NOx emissions equal to or greater than 50 tons per year (tpy). Nonetheless, the EPA recognizes the challenges posed by these due dates and deadlines and is committed to working closely with 21 See PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 23 84 FR at 41676. submitted by Garry Kaufman, Director, Air Pollution Control Division, CDPHE and Mike Silverstein, Executive Director, Regional Air Quality Council, docket ID no. EPA–R08–OAR– 2019–0354–0011. 25 Final Rule, Determinations of Attainment by the Attainment Date, Extensions of Attainment Date, and Reclassification of Several Areas for the 2008 Ozone National Ambient Air Quality Standards, 81 FR 26697 (May 4, 2017). 24 Comment E:\FR\FM\26DER1.SGM 26DER1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 84, No. 247 / Thursday, December 26, 2019 / Rules and Regulations states to help them as they prepare SIP revisions in a timely manner. Comment on deadline for implementing RACT measures not tied to attainment: One commenter stated that adopting and enforcing RACT by July 20, 2021 is a significant regulatory burden, and that the legislative framework in Colorado ‘‘makes it unworkable for Colorado to meet the proposed deadlines for RACT revisions and the proposed deadlines are therefore arbitrary and capricious.’’ CDPHE’s comment on the November 14, 2018 proposal recommended aligning the Serious SIP submittals, including RACT, with the Moderate area SIP submittal for the 2015 ozone standard.26 Alternatively, the State asked for a period of 18 months to two years from the effective date of reclassification to submit a Serious RACT SIP. Several commenters on this action supported the time frames that CDPHE recommended. CDPHE preferred a RACT implementation deadline of January 1, 2024, as proposed in the national notice, to allow more time for Colorado to identify, adopt, and implement measures for ozone precursor reductions. One commenter agreed with this deadline and claimed that it would be ‘‘unlikely that Colorado [could] consider any measures not already in place for sources over 100 tpy’’ with an implementation date of August 3, 2020. Other commenters supported the proposal to adopt the same SIP submission due dates and implementation deadlines that were finalized in the EPA’s August 2019 national rulemaking, citing to the need for national consistency under Section 182(i). Response: As previously discussed, the EPA has concluded that it is appropriate under CAA section 182(i) to align the submission and implementation deadlines for RACT not needed for attainment with other areas recently reclassified to Serious for the 2008 ozone NAAQS. The deadlines that the State has requested are well beyond the Serious area attainment date, and it is self-evident that an implementation deadline beyond the attainment date cannot serve timely attainment. Also, the deadlines being finalized today best support the State’s expressed commitment to reducing ground level ozone concentrations in the Denver Area. The approach being finalized sets a later deadline for RACT implementation than for submission, which allows some time to implement RACT measures where it is possible to 26 83 FR 56781. VerDate Sep<11>2014 15:55 Dec 23, 2019 Jkt 250001 do so. As noted in the August 23, 2019 rulemaking, we believe that a slightly longer timeframe for measures that are not directly tied to the area’s attainment can be appropriate, especially where an area is simultaneously implementing two ozone standards, such that additional controls will help the area attain both standards more expeditiously. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866. C. Paperwork Reduction Act (PRA) This rule does not impose any new information collection burden under the PRA not already approved by the Office of Management and Budget.27 This action does not contain any information collection activities and serves only to make final: (1) A determination that the Denver Area Moderate ozone nonattainment area failed to attain the 2008 NAAQS by the July 20, 2018 where such area will be reclassified to Serious nonattainment for the 2008 ozone standards by operation of law upon the effective date of the final reclassification action; and (2) establishment of adjusted due dates for SIP revisions, including RACT SIP revisions, and RACT implementation deadlines. D. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The determination of failure to attain the 2008 ozone NAAQS (and resulting reclassification) does not in and of itself create any new requirements beyond what is mandated 27 On April 30, 2018, the OMB approved the EPA’s request for renewal of the previously approved information collection request (ICR). The renewed request expires on April 30, 2021, three years after the approval date (see OMB Control Number 2060–0695 and ICR Reference Number 201801–2060–003 for EPA ICR No. 2347.03). PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 70901 by the CAA. Instead, this rulemaking only makes factual determinations, and does not directly regulate any entities. E. Unfunded Mandates Reform Act (UMRA) This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. F. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, tribes, or the relationship between the national government and the states and tribes, or on the distribution of power and responsibilities among the various levels of government. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law. H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of ‘‘covered regulatory action’’ in section 2–202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866. J. National Technology Transfer Advancement Act (NTTAA) This rulemaking does not involve technical standards. E:\FR\FM\26DER1.SGM 26DER1 70902 Federal Register / Vol. 84, No. 247 / Thursday, December 26, 2019 / Rules and Regulations appropriate circuit by February 24, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations This action does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods. L. Congressional Review Act (CRA) This rule is exempt from the CRA because it is a rule of particular applicability. The rule makes factual determinations for specific entities and does not directly regulate any entities. The determination of failure to attain the 2008 ozone NAAQS (and resulting reclassification) does not in itself create any new requirements beyond what is mandated by the CAA. List of Subjects in 40 CFR Part 81 Environmental protection, Air pollution control, Carbon monoxide, Designations and classifications, Greenhouse gases, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. M. Judicial Review Dated: December 16, 2019. Gregory Sopkin, Regional Administrator, Region 8. Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the Agency amends 40 CFR part 81 as follows: PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES 1. The authority citation for part 81 continues to read as follows: ■ Authority: 42 U.S.C. 7401, et seq. Subpart C—Section 107 Attainment Status Designations 2. In § 81.306, the table ‘‘Colorado— 2008 8-Hour Ozone NAAQS (Primary and secondary)’’ is amended by revising the ‘‘Date’’ and ‘‘Type’’ entries under ‘‘Classification’’ for ‘‘Denver-BoulderGreeley-Ft. Collins-Loveland, CO:2’’ to read as follows: ■ § 81.306 * Colorado. * * * * For the reasons stated in the preamble, the Environmental Protection COLORADO—2008 8-HOUR OZONE NAAQS [Primary and secondary] Designation Designated Area Denver-Boulder-Greeley-Ft. Collins-Loveland, * * * CO: 2 * * * * * [FR Doc. 2019–27485 Filed 12–23–19; 8:45 am] BILLING CODE 6560–50–P CORPORATION FOR NATIONAL AND COMMUNITY SERVICE 45 CFR Parts 1230 and 2554 RIN 3045–AA73 Annual Civil Monetary Penalties Inflation Adjustment Corporation for National and Community Service. ACTION: Interim final rule. AGENCY: The Corporation for National and Community Service (CNCS) is updating its regulations to reflect required annual inflation-related increases to the civil monetary penalties in its regulations, pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. DATES: khammond on DSKJM1Z7X2PROD with RULES SUMMARY: VerDate Sep<11>2014 20:33 Dec 23, 2019 .............. Jkt 250001 Classification Date 1 Type ........................ Nonattainment ........................ * * Effective date: This rule is effective January 15, 2020. Comment due date: Technical comments may be submitted until January 27, 2020. ADDRESSES: You may submit comments, identified by the title of the information collection activity, by any of the following methods: (1) By mail sent to: Corporation for National and Community Service; Attention Stephanie Soper; Office of General Counsel; 250 E Street SW, Washington, DC 20525. (2) By hand delivery or by courier to the CNCS mailroom at the address above between 9:00 a.m. and 4:00 p.m. Eastern Time, Monday through Friday, except federal holidays. (3) Electronically through www.regulations.gov. Comments submitted in response to this Notice will be made available to the public through www.regulations.gov. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email PO 00000 Frm 00022 Fmt 4700 Date 1 Sfmt 4700 1/27/2020. Type Serious. * * comment, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. Please note that responses to this public comment request containing any routine notice about the confidentiality of the communication will be treated as public comments that may be made available to the public notwithstanding the inclusion of the routine notice. FOR FURTHER INFORMATION CONTACT: Stephanie Soper, Law Office Manager, Office of General Counsel, at 202–606– 6747 or email to ssoper@cns.gov. SUPPLEMENTARY INFORMATION: I. Background The Corporation for National and Community Service (CNCS) is a federal agency that engages millions of Americans in service through its AmeriCorps, Senior Corps, and Volunteer Generation Fund programs to further its mission to improve lives, strengthen communities, and foster E:\FR\FM\26DER1.SGM 26DER1

Agencies

[Federal Register Volume 84, Number 247 (Thursday, December 26, 2019)]
[Rules and Regulations]
[Pages 70897-70902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27485]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R08-OAR-2019-0354; FRL-10003-43-Region 8]


Finding of Failure To Attain and Reclassification of Denver Area 
for the 2008 Ozone National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is determining that 
the Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado nonattainment 
area (Denver Area) failed to attain the 2008 ozone National Ambient Air 
Quality Standard (NAAQS) by the applicable attainment date for 
``Moderate'' nonattainment areas. The effect of failing to attain by 
the attainment date is that the area will be reclassified by operation 
of law to ``Serious'' upon the effective date of this final 
reclassification action. Along with the reclassification, the EPA is 
finalizing deadlines for submittal of SIP revisions required under the 
new classification and implementation of related control requirements. 
This final action is necessary to fulfill the EPA's statutory 
obligation to determine whether the Denver Area attained the NAAQS by 
the attainment date, and, within six months of the attainment date, to 
publish a document in the Federal Register identifying each area that 
is determined as having failed to attain and its reclassification.

DATES: This rule is effective on January 27, 2020.

ADDRESSES: The EPA has established a docket for this action under 
docket ID no. EPA-R08-OAR-2019-0354. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available through https://www.regulations.gov; you may contact the person identified in the For 
Further Information Contact section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, (303) 312-6563, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in our August 
15, 2019 proposal, in which we proposed to determine that the Denver 
Area failed to attain the 2008 ozone NAAQS by the applicable attainment 
date.\1\ The proposed determination was based upon complete, quality-
assured, and certified ozone monitoring data that showed that, at 0.079 
parts per million (ppm), the 8-hour ozone design value for the area 
exceeded 0.075 ppm for the period 2015-2017.\2\ The EPA proposed that 
the

[[Page 70898]]

Denver Area would be reclassified as a Serious nonattainment area by 
operation of law on the effective date of a final action finding that 
the area failed to attain the 2008 ozone NAAQS by the applicable 
attainment date for Moderate areas.\3\ For the Denver Area, we also 
proposed deadlines for submittal of SIP revisions and implementation of 
the related control requirements for the Serious nonattainment area 
consistent with due dates and implementation deadlines for Moderate 
areas across the country that failed to attain by the July 20, 2018 
attainment date.\4\
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    \1\ Proposed Rule and Notice of Public Hearing, Finding of 
Failure to Attain and Reclassification of Denver Area for the 2008 
Ozone National Ambient Air Quality Standard, 84 FR 41674 (Aug. 15, 
2019).
    \2\ See id.; Proposed Rule, Determinations of Attainment by the 
Attainment Date, Extensions of the Attainment Date, and 
Reclassification of Several Areas Classified as Moderate for the 
2008 Ozone National Ambient Air Quality Standards, 83 FR 56781, 
56784 (Nov. 14, 2018), Docket ID no. EPA-HQ-OAR-2018-0226; and Air 
Quality System (AQS, https://www.epa.gov/aqs) data, monitor ID 08-
059-0011. A design value is a statistic that describes the air 
quality status of a given location (i.e., air quality monitor) with 
respect to the NAAQS and is used to determine compliance with the 
standard. The design value is the 3-year average of the annual 
fourth highest daily maximum 8-hour average ozone concentrations. 
The design value is calculated for each air quality monitor in an 
area, and the area's design value is the highest design value among 
the individual monitoring sites in the area. See 40 CFR part 50, 
appendix D--Reference Measurement Principle and Calibration 
Procedure for the Measurement of Ozone in the Atmosphere 
(Chemiluminescence Method).
    \3\ See CAA section 181(b)(2)(A), 42 U.S.C. 7511(b)(2)(A).
    \4\ See Final Rule, Determinations of Attainment by the 
Attainment Date, Extensions of the Attainment Date, and 
Reclassification of Several Areas Classified as Moderate for the 
2008 Ozone National Ambient Air Quality Standards, 84 FR 44238 (Aug. 
23, 2019).
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II. Final Action

    The EPA held a public hearing on the proposal at the Denver 
regional offices on September 6, 2019 and accepted written public 
comments through September 16, 2019. All comments received during the 
public comment period, as well as pertinent comments submitted in 
response to the EPA's November 2018 proposal to grant the State of 
Colorado's request for a 1-year attainment date extension for the 
Denver Area (which was part of a national rulemaking concerning 
Moderate areas) may be found in the electronic docket for this final 
action. Key comments and the agency's responses are included in this 
section, below. A Response to Comments document including all 
significant comments received on the EPA's proposal and the agency's 
responses to those comments is in the docket for this rulemaking. To 
access the full set of comments received and the Response to Comments, 
please go to http://www.regulations.gov and search for Docket No. EPA-
R08-OAR-2019-0354, or contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section.

A. Determination of Failure To Attain and Reclassification

    In accordance with CAA section 181(b)(2), the EPA is finalizing its 
proposed determination that the Denver Area failed to attain the 2008 
ozone NAAQS by the applicable attainment date of July 20, 2018.\5\ 
Therefore, on the effective date of this final action, the area will be 
reclassified by operation of law from Moderate to Serious for the 2008 
ozone NAAQS.\6\ Once reclassified to Serious, the Denver Area will be 
required to attain the standard ``as expeditiously as practicable'' but 
no later than nine years after the initial designation as 
nonattainment, which in this case would be no later than July 20, 2021. 
If the area attains the 2008 ozone NAAQS before the Serious area 
attainment date, Colorado may request redesignation to attainment, 
provided the State can demonstrate that it has met the criteria under 
CAA section 107(d)(3)(E).\7\
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    \5\ See 42 U.S.C. 7511(b)(2); 84 FR 41674.
    \6\ The revised classification will appear in the Federal 
Register at 40 CFR 81.306.
    \7\ 42 U.S.C. 7407(d)(3)(E). Redesignation guidance and more 
information about the Clean Data Policy are available at https://www.epa.gov/ozone-pollution/redesignation-and-clean-data-policy-cdp.
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B. Summary of Major Comments and Responses

    The EPA received about 460 comments on its proposal to determine 
that the Denver Area failed to attain by the applicable attainment date 
and to reclassify the area to Serious nonattainment. We also received 
and are considering in this action 14 pertinent comments on our 
previous proposal to grant the State's since-withdrawn request for an 
attainment date extension.\8\ All comments received are posted in the 
docket for this action, and responses to all significant comments are 
in the Response to Comments document in the docket. Below is a summary 
of the major adverse comments and our responses to them.
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    \8\ 83 FR 56781; these comments are available at docket ID no. 
EPA-R08-OAR-2019-0354-0011.
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    Comments concerning the withdrawn extension request: Several 
commenters requested that the EPA reinstate the one-year attainment 
date extension to give the Denver Area time to attain the NAAQS. Some 
expressed concern that withdrawal of the one-year extension of the 
attainment date would not improve air quality as expeditiously as 
possible. One commenter pointed to a lawsuit at the Colorado Court of 
Appeals \9\ and stated that the Court could possibly invalidate the 
withdrawal of the attainment date extension request.
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    \9\ See Defend Colorado comment letter, docket ID no. EPA-R08-
OAR-2019-0354-0334.
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    Response: By letter dated June 4, 2018,\10\ the Colorado Department 
of Public Health and Environment (CDPHE) requested an extension of the 
Denver Area Moderate attainment date and certified that the State of 
Colorado complied with all the requirements and commitments pertaining 
to the Denver Area Moderate ozone area SIP, in accordance with CAA 
section 181(a)(5)(A). On November 14, 2018, the EPA proposed in our 
national Determination of Attainment by the Attainment date (DAAD) 
action to grant a 1-year extension of the attainment date for the 
Denver Area.\11\ In a letter dated March 26, 2019, Colorado Governor 
Jared Polis informed the EPA that the State was withdrawing its June 4, 
2018, request for a one-year attainment date extension for the 2008 
ozone NAAQS.\12\ We therefore stated in our final national DAAD action 
that we were not taking final action on the extension but would be 
addressing whether the Denver area attained the 2008 NAAQS by the July 
20, 2018 attainment date and any associated reclassification in a 
separate action.\13\ We proceeded in this fashion because the EPA 
interprets CAA section 181(a)(5) to require a request from a state 
before the EPA may consider granting a one-year attainment date 
extension.\14\ Accordingly, because the Governor has withdrawn the 
State's request, the EPA is not taking final action to grant a one-year 
extension for the Denver Area, and instead is determining that the 
Denver Area failed to attain by the attainment date.
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    \10\ Letter from Garrison Kaufman, Director, Air Pollution 
Control Division, CDPHE to Doug Benevento, ``Submittal of 
Exceptional Events Demonstration and Request to Extend 2008 Ozone 
National Ambient Air Quality Standard Attainment Deadline for the 
Denver Metropolitan/North Front Range Nonattainment Area'' (June 4, 
2018), docket ID no. EPA-R08-OAR-2019-0354-0002.
    \11\ 84 FR at 56784.
    \12\ Letter from Governor Jared Polis to Doug Benevento, 
Regional Administrator, EPA Region 8, ``Withdrawal of Colorado's 
Request to Extend the 2008 Ozone National Ambient Air Quality 
Standard Attainment Date for the Denver Metropolitan/North Front 
Range Nonattainment Areas'' (March 26, 2019), docket ID no. EPA-R08-
OAR-2019-0354-0012.
    \13\ 84 FR at 44242.
    \14\ See id.
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    Comments opposing reclassification: Several commenters disagreed 
with the EPA's proposal to reclassify the Denver Area from a Moderate 
to a Serious nonattainment area. The commenters cited various reasons 
for their opposition. One asserted that but for international 
emissions, Colorado would comply with the applicable ozone NAAQS, while 
another asserted

[[Page 70899]]

that the State's decision not to pursue a CAA section 179B 
international emissions demonstration was ``misguided.'' Another 
commenter alleged that the Denver Area cannot attain the standard by 
July 20, 2021, and that reclassification would force businesses to 
adopt new control strategies ``with no scientific evidence that such 
strategies will achieve any reduction in ozone.'' One comment focused 
on data, claiming that the CDPHE annual air quality data is 
``incomplete and materially flawed'' because it does not account for 
international emissions and exceptional events, and that the ``based 
on'' language of section 181(b)(2) gives the EPA the discretion to 
consider factors other than the air quality data submitted by the 
state. The commenter asked the EPA to reopen the public comment period 
so that it can ``more fully evaluate the impact of international 
emissions and exceptional events on ozone concentrations in Colorado.'' 
Also, the commenter urged the EPA to propose a new rule finding that 
the Denver Area attained the 2008 ozone NAAQS.
    Response: Detailed responses to the above comments are in the 
Response to Comments document in the docket for this action. A summary 
of those responses follows. The EPA has a mandatory duty under CAA 
section 181(b)(2) to determine whether the Denver area attained by its 
July 20, 2018 attainment date based on the area's design value as of 
the attainment date. The area's 2015-2017 design value of 0.079 parts 
per million is based on certified, quality-assured air quality 
monitoring data. None of the air quality considerations raised by 
commenters permits the EPA to make a different determination of 
attainment for the Denver area.
    With respect to the influence of international emissions on a 
nonattainment area, CAA section 179B(b) \15\ specifies that ``any 
state'' that establishes to the satisfaction of the Administrator that 
an ozone nonattainment area in such state would have attained the ozone 
NAAQS ``but for emissions emanating from outside the United States'' is 
not subject to CAA requirements for reclassification upon failure to 
attain.\16\ The clear statutory text of CAA section 179B(b) limits the 
option to make the section 179B(b) demonstration to the state with 
jurisdiction over the relevant ozone nonattainment area. There is no 
statute or rule requiring the state to submit a 179B(b) demonstration. 
As noted by some of the commenters, the CAA is based on a cooperative 
federalism structure, and in that structure, Congress reserved for each 
state the discretion, based on its expertise and judgment, whether to 
seek relief under CAA section 179B(b). The EPA has no authority to 
require the state to make a different decision, nor may any party make 
such a demonstration on behalf of the state. The EPA has not received a 
section 179B(b) demonstration from Colorado.
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    \15\ 42 U.S.C. 7509a(b). Section 179B(a) is not relevant to this 
action, because it concerns the approvability of attainment 
demonstrations, and does not apply to reclassifications. 
Accordingly, our discussion focuses on section 179B(b).
    \16\ The text of that section contains an erroneous reference to 
section 18l(a)(2) instead of 181(b)(2); our response to the comment 
would be the same regardless of the cross-referenced section. See 
General Preamble for the Implementation of Title I of the Clean Air 
Act Amendments of 1990, 57 FR 13498, 13569 (Apr. 16, 1992).
---------------------------------------------------------------------------

    As to exceptional events, an acceptable demonstration must meet 
requirements of the Exceptional Events Rule, promulgated at 40 CFR 
50.14. Under this rule, demonstrating that an event meets these 
requirements begins with a state identifying monitoring data that were 
affected by an exceptional event and resulted in exceedances or 
violations of any NAAQS for purposes of a regulatory determination. 
Once a state identifies such data, it may choose to notify the Regional 
EPA office of its intent to submit an exceptional event 
demonstration.\17\ If the state chooses to submit a demonstration, it 
flags the associated data and creates an initial event description in 
the EPA's Air Quality System. The state and the EPA communicate about 
any potential issues or deadlines that may be pertinent to the 
submission, and once the demonstration is finalized, the state must 
provide notice and opportunity for public comment. After these steps 
have been completed, the state submits the demonstration to the 
Regional EPA office for analyses and potential concurrence.
---------------------------------------------------------------------------

    \17\ 40 CFR 50.14(a).
---------------------------------------------------------------------------

    As some commenters note, the EPA previously reviewed two 
exceptional event demonstrations submitted as a part of Colorado's now-
withdrawn request for an attainment date extension.\18\ These 
demonstrations were considered in calculating the design value for the 
Denver Area that this action is based on. That is, the 0.079 ppm design 
value for the Denver Area excludes the two days covered by the 
previously submitted exceptional event demonstrations. While the 
exclusion of those two days of data qualified the Denver Area for the 
1-year extension of the attainment date, the area's design value as of 
the attainment date exceeds the NAAQS whether or not the exceptional 
events days are excluded. The EPA will review any exceptional event 
demonstrations that may be provided by Colorado in the future, as 
potentially relevant to future actions, but we have received no other 
demonstrations that relate to this action. As noted above, CAA section 
181(b)(2)(A) requires the EPA Administrator to determine whether an 
area attained the 2008 ozone 8-hour NAAQS based on the area's design 
value as of the July 20, 2018 attainment date, which in this case was 
0.079 ppm, based on data from calendar years 2015-2017.
---------------------------------------------------------------------------

    \18\ See Letter from Garrison Kaufman (June 4, 2018), docket ID 
no. EPA-R08-OAR-2019-0354-0002.
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    Finally, the EPA disagrees with the assertion that section 
181(b)(2) affords the agency the discretion to consider other factors 
besides an area's air quality design value in determining whether an 
area attained by its attainment date. But even if the commenters' 
interpretations were correct, for the reasons explained above and in 
the Response to Comments, it would be reasonable in this case not to 
exercise that discretion, and to consider only the design value.
    Comment: Several commenters urged the EPA not to finalize 
reclassification of the Denver Area to Serious because it will result 
in ``immediate and long-term damage'' to the State's economy and have 
``immeasurable economic impacts on the business community'' and 
elsewhere. Several commenters claimed that reclassification would 
result in the loss of federal highway funds.
    Response: The CAA does not allow the EPA to consider economic 
impacts in assessing whether an area has attained the NAAQS by the 
applicable date. Instead, CAA section 181(b)(2) requires the EPA to 
make the determination of attainment based solely on the design value, 
which is derived entirely from monitored air quality data. Here, we 
find that the Denver Area did not attain the 2008 Ozone NAAQS by the 
Moderate attainment date, based on the area's 2015-2017 design value of 
0.079 ppm--which unequivocally exceeds the standard of 0.075 ppm.\19\ 
As required by CAA section 181(b)(2)(A), the determination that the 
Denver Area failed to attain by the attainment date results in a 
reclassification to Serious by operation of law.
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    \19\ See 83 FR 56784.
---------------------------------------------------------------------------

    As to loss of highway funds, the mere reclassification of an area 
does not

[[Page 70900]]

automatically trigger highway sanctions or increased offset 
requirements under section 179(b)(1). Sanctions would only be a 
possibility if the EPA finds that the State has failed to submit a plan 
under section 110, disapproves a submission, or finds that any 
requirement of an approved plan is not being properly implemented, and 
would only be required if the State fails to remedy the deficiency 
within 18 months.
    Comment: Several commenters were concerned about the need for 
businesses to obtain major source permits because the major source 
threshold drops with a Serious classification, and about the potential 
of an increased backlog at CDPHE for issuing permits.
    Response: We acknowledge commenters' concerns regarding resource 
needs for permitting new major sources under a Serious 
reclassification. However, as previously discussed, CAA section 
181(b)(2) sets forth the requirements for the EPA to make an attainment 
determination and subsequent reclassification due to failure to attain, 
and does not afford the agency any discretion to refrain from 
reclassification because of commenters' concerns about permitting. The 
EPA recognizes the challenges posed by a Serious classification, 
though, and is committed to working closely with Colorado to help them 
with planning requirements associated with this classification.

C. Comments Concerning Serious Area SIP Revision Submission Deadlines 
and Reasonably Available Control Technology (RACT) Implementation 
Deadlines

    The EPA received comments on the proposed Serious area deadlines 
for submitting SIP and RACT revisions, and on the deadlines for 
implementation of RACT. After full consideration of those comments, and 
pursuant to CAA section 182(i), the EPA is finalizing the following SIP 
submission due dates and RACT implementation deadlines for Colorado. 
The due date for Serious area SIP revisions, including RACT measures 
tied to attainment for the Denver Area, will be August 3, 2020. That is 
also the implementation deadline for RACT measures tied to attainment. 
For SIP revisions for RACT measures not tied to attainment, the EPA is 
finalizing a due date of March 23, 2021 and an implementation deadline 
of July 20, 2021. All of these deadlines are consistent with deadlines 
finalized in the August 2019 national rulemaking that reclassified 
several other areas classified as Moderate to Serious for the 2008 
ozone NAAQS.\20\ August 3, 2020, is also the deadline for areas 
classified Moderate and higher for the 2015 ozone NAAQS to submit RACT 
SIP revisions.\21\
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    \20\ See 84 FR 44238.
    \21\ See Final Rule, Implementation of the 2015 National Ambient 
Air Quality Standards for Ozone: Nonattainment Area State 
Implementation Plan Requirements, 83 FR 62998, 63007 (Dec. 6, 2018) 
(setting RACT submission deadlines at ``no later than 24 months 
after the effective date of nonattainment designation''); Final 
Rule, Additional Air Quality Designations for the 2015 Ozone 
National Ambient Air Quality Standards, 83 FR 25776 (June 4, 2018) 
(designating areas effective August 3, 2018).
---------------------------------------------------------------------------

    Comments on August 3, 2020 deadlines: Some commenters opposed the 
deadline for SIP submissions and implementation of RACT measures tied 
to attainment because they asserted that deadline would not provide a 
reasonable amount of time to evaluate control options, conduct 
rulemaking, and give affected sources sufficient time to implement 
control requirements. Several commenters said that it would not be 
achievable for Colorado to develop and submit a SIP by the August 3, 
2020 deadline, especially because of Colorado's legislative process. 
These commenters preferred a period of 18 months or more, or at least 
the same amount of time as other reclassified areas, for Serious Area 
SIP submission due dates and implementation deadline for RACT measures 
tied to attainment. Several comments suggested that an extended 
deadline for SIP submittal could result in more significant emission 
reduction measures than a shortened deadline. On the other hand, other 
comments supported the August 2, 2020 deadline based on the need to 
``rapidly address the pollution problem,'' and one commenter claimed 
that the EPA's ``history of repeated delay in implementing the 2008 
NAAQS further justifies EPA's proposal to adopt the same SIP submission 
due dates and implementation deadlines that were finalized in EPA's 
August 2019 national rulemaking.''
    Response: CAA section 182(i) gives the Administrator the authority 
to adjust SIP submission due dates as necessary or appropriate to 
assure consistency among SIP submissions.\22\ In interpreting 
``consistency among the required submissions,'' the EPA is not only 
considering submissions for multiple ozone NAAQS that are currently 
being implemented, but also consistency among the various similarly 
situated nonattainment areas that are being reclassified. As stated in 
section II of the proposal's preamble, ``given the State's commitment 
to addressing its Serious Area obligations, and given section 182(i)'s 
focus on consistency, we [find] that aligning Colorado's deadline with 
the national deadlines is appropriate and necessary for achieving 
`consistency among the submissions' of all reclassified areas across 
the country and supports achieving timely attainment in the Denver 
Area.'' \23\
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    \22\ 42 U.S.C. 7511a(i).
    \23\ 84 FR at 41676.
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    With regard to the requests for a period of 18 months or longer for 
submitting SIP revisions, the governor's letter withdrawing the 
extension request committed to ``moving aggressively forward and 
without delay in our efforts to reduce ground level ozone 
concentrations in the Denver Metro/North Front Range nonattainment 
area.'' We will work with Colorado's air planning agencies as they 
develop additional attainment plans. Furthermore, Colorado has known 
that revised implementation plans would be due soon after 
reclassification, in order to provide for expeditious attainment of the 
2008 ozone NAAQS, and has had the opportunity to make progress on plan 
development activities before issuance of this final action. Colorado 
was aware of proposed Serious SIP due dates since the November 14, 2018 
proposed DAAD, which is evident from the comment letter submitted by 
CDPHE in connection with that proceeding.\24\ And previously, when the 
Denver Area was reclassified from Marginal to Moderate 
nonattainment,\25\ the State only had seven months from the effective 
date of reclassification to submit Moderate and RACT SIPs. The Colorado 
Air Quality Control Commission has adopted new and revised rules in 
2019 to prepare for the development and submission of a Serious SIP. 
Some of these include adoption of Regulation Number 21 to establish VOC 
content limits for consumer products and architectural and industrial 
maintenance coatings manufactured and/or sold in Colorado, revisions to 
Regulation Number 7 to minimize emissions from the oil and gas sector, 
and adoption of certain RACT for major sources with VOC and/or 
NOx emissions equal to or greater than 50 tons per year 
(tpy). Nonetheless, the EPA recognizes the challenges posed by these 
due dates and deadlines and is committed to working closely with

[[Page 70901]]

states to help them as they prepare SIP revisions in a timely manner.
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    \24\ Comment submitted by Garry Kaufman, Director, Air Pollution 
Control Division, CDPHE and Mike Silverstein, Executive Director, 
Regional Air Quality Council, docket ID no. EPA-R08-OAR-2019-0354-
0011.
    \25\ Final Rule, Determinations of Attainment by the Attainment 
Date, Extensions of Attainment Date, and Reclassification of Several 
Areas for the 2008 Ozone National Ambient Air Quality Standards, 81 
FR 26697 (May 4, 2017).
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    Comment on deadline for implementing RACT measures not tied to 
attainment: One commenter stated that adopting and enforcing RACT by 
July 20, 2021 is a significant regulatory burden, and that the 
legislative framework in Colorado ``makes it unworkable for Colorado to 
meet the proposed deadlines for RACT revisions and the proposed 
deadlines are therefore arbitrary and capricious.'' CDPHE's comment on 
the November 14, 2018 proposal recommended aligning the Serious SIP 
submittals, including RACT, with the Moderate area SIP submittal for 
the 2015 ozone standard.\26\ Alternatively, the State asked for a 
period of 18 months to two years from the effective date of 
reclassification to submit a Serious RACT SIP. Several commenters on 
this action supported the time frames that CDPHE recommended.
---------------------------------------------------------------------------

    \26\ 83 FR 56781.
---------------------------------------------------------------------------

    CDPHE preferred a RACT implementation deadline of January 1, 2024, 
as proposed in the national notice, to allow more time for Colorado to 
identify, adopt, and implement measures for ozone precursor reductions. 
One commenter agreed with this deadline and claimed that it would be 
``unlikely that Colorado [could] consider any measures not already in 
place for sources over 100 tpy'' with an implementation date of August 
3, 2020. Other commenters supported the proposal to adopt the same SIP 
submission due dates and implementation deadlines that were finalized 
in the EPA's August 2019 national rulemaking, citing to the need for 
national consistency under Section 182(i).
    Response: As previously discussed, the EPA has concluded that it is 
appropriate under CAA section 182(i) to align the submission and 
implementation deadlines for RACT not needed for attainment with other 
areas recently reclassified to Serious for the 2008 ozone NAAQS. The 
deadlines that the State has requested are well beyond the Serious area 
attainment date, and it is self-evident that an implementation deadline 
beyond the attainment date cannot serve timely attainment. Also, the 
deadlines being finalized today best support the State's expressed 
commitment to reducing ground level ozone concentrations in the Denver 
Area. The approach being finalized sets a later deadline for RACT 
implementation than for submission, which allows some time to implement 
RACT measures where it is possible to do so. As noted in the August 23, 
2019 rulemaking, we believe that a slightly longer timeframe for 
measures that are not directly tied to the area's attainment can be 
appropriate, especially where an area is simultaneously implementing 
two ozone standards, such that additional controls will help the area 
attain both standards more expeditiously.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This rule does not impose any new information collection burden 
under the PRA not already approved by the Office of Management and 
Budget.\27\ This action does not contain any information collection 
activities and serves only to make final: (1) A determination that the 
Denver Area Moderate ozone nonattainment area failed to attain the 2008 
NAAQS by the July 20, 2018 where such area will be reclassified to 
Serious nonattainment for the 2008 ozone standards by operation of law 
upon the effective date of the final reclassification action; and (2) 
establishment of adjusted due dates for SIP revisions, including RACT 
SIP revisions, and RACT implementation deadlines.
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    \27\ On April 30, 2018, the OMB approved the EPA's request for 
renewal of the previously approved information collection request 
(ICR). The renewed request expires on April 30, 2021, three years 
after the approval date (see OMB Control Number 2060-0695 and ICR 
Reference Number 201801-2060-003 for EPA ICR No. 2347.03).
---------------------------------------------------------------------------

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. The 
determination of failure to attain the 2008 ozone NAAQS (and resulting 
reclassification) does not in and of itself create any new requirements 
beyond what is mandated by the CAA. Instead, this rulemaking only makes 
factual determinations, and does not directly regulate any entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action imposes no enforceable duty on any 
state, local or tribal governments or the private sector.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, tribes, or the relationship 
between the national government and the states and tribes, or on the 
distribution of power and responsibilities among the various levels of 
government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not apply on any Indian reservation land or in any 
other area where EPA or an Indian tribe has demonstrated that a tribe 
has jurisdiction. In those areas of Indian country, the rule does not 
have tribal implications and will not impose substantial direct costs 
on tribal governments or preempt tribal law.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

[[Page 70902]]

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action does not provide EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods.

L. Congressional Review Act (CRA)

    This rule is exempt from the CRA because it is a rule of particular 
applicability. The rule makes factual determinations for specific 
entities and does not directly regulate any entities. The determination 
of failure to attain the 2008 ozone NAAQS (and resulting 
reclassification) does not in itself create any new requirements beyond 
what is mandated by the CAA.

M. Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 24, 2020. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Carbon monoxide, 
Designations and classifications, Greenhouse gases, Intergovernmental 
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds.

    Dated: December 16, 2019.
Gregory Sopkin,
Regional Administrator, Region 8.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 81 as follows:

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

0
1. The authority citation for part 81 continues to read as follows:

    Authority:  42 U.S.C. 7401, et seq.

Subpart C--Section 107 Attainment Status Designations

0
2. In Sec.  81.306, the table ``Colorado--2008 8-Hour Ozone NAAQS 
(Primary and secondary)'' is amended by revising the ``Date'' and 
``Type'' entries under ``Classification'' for ``Denver-Boulder-Greeley-
Ft. Collins-Loveland, CO:2'' to read as follows:


Sec.  81.306  Colorado.

* * * * *

                                        Colorado--2008 8-Hour Ozone NAAQS
                                             [Primary and secondary]
----------------------------------------------------------------------------------------------------------------
                                                 Designation                           Classification
----------------------------------------------------------------------------------------------------------------
          Designated Area              Date \1\              Type             Date \1\              Type
----------------------------------------------------------------------------------------------------------------
Denver-Boulder-Greeley-Ft. Collins- ..............  Nonattainment........      1/27/2020.  Serious.
 Loveland, CO: \2\.
 
                                                  * * * * * * *
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* * * * *
[FR Doc. 2019-27485 Filed 12-23-19; 8:45 am]
BILLING CODE 6560-50-P